The Pennsylvania State University The Graduate School The Capital College THE GREAT MAINE BATHROOM CASE: CONTESTING SEX SEGREGATION AND GENDER REGULATION IN AMERICA A Dissertation in American Studies by Jonatha Jeanine Ruhsam © 2016 Jonatha Jeanine Ruhsam Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy December 2016 ii The dissertation of Jonatha Jeanine Ruhsam was reviewed and approved* by the following: John R. Haddad Professor of American Studies and Popular Culture Dissertation Adviser Chair of Committee Charles D. Kupfer Associate Professor of American Studies and History Kamini Maraj Grahame Associate Professor of Sociology and Behavioral Sciences Anthony B. Buccitelli Assistant Professor of American Studies and Communications Simon J. Bronner Professor of American Studies, Chair of American Studies Graduate Program *Signatures are on file in the Graduate School. iii Abstract The Great Maine Bathroom case is the fictional name I assigned to a series of lawsuits and appeals that were contested in the state of Maine from 2008 through 2014. They were brought by a young elementary school child who was blocked from using the girl’s bathroom because she was a transgender girl. For all social intents and purposes the plaintiff was a girl, but her pre-pubescent genital anatomy, if examined, was contradictory. When the case reached the state’s Supreme Court it marked the first time that any high court in the nation was asked to decide whether gender, or sex, was to be the determinant for admission to a sex-segregated space. Among the many issues the case opened for interrogation was the long history and practice of sex-segregation in (post-discovery) America and its reflexive function in shaping the nation’s socio- political ideology. I use a narrative of the case to provide intellectual portals into this and other problems related to the ways the sex/gender system operates to provide and maintain hierarchical advantage in America’s liberal democracy. Throughout the dissertation I focus on how those who cross gender—those whom we call “transgender” today—have served to disrupt and destabilize not only the man/woman dualism, but also the gender/sex and mind/body dualisms. Inasmuch as these individuals provoke categorical crises in a Western culture that relies upon such a framework to maintain order, they have been vigorously persecuted. Examining two figures from the 19th century, I argue that the gender-crosser’s subversive existence has also offered a beneficial mode of influence in and through its ability to mediate and transcend seemingly oppositional dichotomies. However, as this accomplishment has iv been less than welcomed in today’s neo-liberal political ideology, I note the current juridical-medical effort to fit this unruly group into traditional, manageable categories. This is possible because contemporary technology has allowed the sexed body to be transformed to match the gendered brain, potentially offering a resolution to the mind/body conflict. I argue that this solution serves the capitalistic state well, but that it does so by denying the possibility of an equitable, gender-egalitarian society. I show how the current “transgender agenda” to accept and assimilate transgender students—that is so vigorously attacked by social conservatives—actually serves to reify and maintain the traditional sex/gender system. I conclude by positing that the transcendent, mediatory figure of the uncategorizable gender-crosser offers our divided, dogmatic society an ideal deus ex machina. 1 1 “Deus ex machina” is translated from Latin literally as “god from the machine.” Aristotle was the first to use the plot device deus ex machina as a means of resolving problematic conflicts in Greek tragedies. Typically done at the end of a play when the situation was at its most dire, a character playing the part of a god was lowered onto the stage by a machine and suddenly solved and put right the problem. v Table of Contents List of Figures vi Timeline vii Introduction 1 Nicole’s Story: Susan is a Girl 16 Chapter 1: When Sex Became Gender 24 Nicole’s Story: I’m a Boy-Girl 42 Chapter 2: Crossing Gender 53 Nicole’s Story: Fifth Grade 87 Chapter 3: Sex-Segregated Spaces 99 Wayne’s Story: People Who Fear the Unknown 135 Chapter 4: Gender, Church and State 147 Wayne’s Story: The Great Virginia Bathroom Case 185 Conclusion 192 Bibliography 207 vi List of Figures Plate 1: Nicole Maines in class, third grade, 2005. 48 Plate 2: Balboa supervising the slaughter of effeminate Indians. 56 Plate 3: 16th century drawing of a vagina and ovaries 58 Plate 4: Osh-Tisch and hir wife, 1877. 66 Plate 5: Christine Jorgenson: February, 1953. 77 Plate 6: Poster from the motion picture TransAmerica (2005) 83 Plate 6: Lacan’s “Twin Doors.” 105 Plate 7: “Unisex bathroom rumors.” 112 Plate 8: Ad from Colorado newspaper. 119 Plate 9: Pictorial in Daily Caller. 120 Plate 10: Bathroom predator. 121 Plate 11: Ad placed by Pacific Justice Institute protesting AB 1266. 121 Plate 12: Portion of ad in Minneapolis Star Tribune. 122 Plates 13: Posters advertising Dressed to Kill (1980). 123 Plate 14: Cartoon in the Minneapolis Star Tribune, March 31, 2016. 126 Plate 15: Wayne and Nicole Maines 145 Plate 16: The Age of Iron: Man as He Expects to Be. 172 Plate 17: “Never mind, old chap,” said the Tin Woodman. 175 Plate 18: Baphomet. 202 Plate 19: The Maines family, 2015. 203 Plate 20: The End; The final page of The Land of Oz (1904). 206 vii Timeline for The Great Maine Bathroom Case October 7, 1997. Wyatt (Nicole) Maines is born. September, 2003: Nicole enters first grade at Asa Adams Elementary School. September, 2007: Shortly after beginning her fifth grade year, Nicole is harassed by a fifth grade boy whose grandfather wants to prohibit her from using the girl’s bathroom. As a result of the notoriety caused by these incidents, the school bars Nicole from the girl’s room. April 10, 2008: While a student in 5th grade at Asa Adams, Nicole (as “Jane Doe”) files a complaint with the Maine Human Rights Commission alleging that the superintendent and her school district entities violated the MHRA by excluding Susan from the communal girls’ bathroom. March, 2009: Under the care of Dr. Norman Spack, Nicole begins taking the drug Lupron to block the onset of male puberty. June 5, 2009: The Maine Human Rights Commission unanimously finds reasonable grounds to believe discrimination occurred. September 23, 2009: Wayne and Kelley Maines (“The Does”), as parents and next friends of Nicole (“Susan”), and the Commission file a complaint in the Superior Court asserting claims for unlawful discrimination in education (Count I) and unlawful discrimination in a place of public accommodation (Count II) on the basis of sexual orientation. Spring, 2010: Nicole begins an estrogen feminization program under Dr. Spack’s guidance. May 11, 2011: After the Superior Court denied the defendants’ motion to dismiss all counts pursuant to M.R. Civ. P. 12(b)(6), the Maines (“The Does”) and the Commission filed an amended complaint, adding facts to Counts I and II based on Nicole’s exclusion from the girls’ bathroom at Orono Middle School. November 20, 2012: In a setback for Nicole, the Superior Court grants RSU 26’s motion for summary judgment on all counts. The Maines and the Commission appeal the Superior Court’s entry of summary judgment on Counts I and II. June 12, 2013: Jennifer Levi, Esq., argues the appeal before the Maine Supreme Judicial Court. January 30, 2014: The Maine Supreme Judicial Court decides in Nicole’s favor. July 28, 2015: Nicole undergoes GRS. 1 Introduction The title of this dissertation pays homage to Linda Gordon’s award-winning 1999 monograph, The Great Arizona Orphan Abduction. Gordon’s examination of race, gender and family in the West at the dawn of the twentieth century is structured around the narrative of the kidnapping of forty Irish orphans at a remote Arizona mining town. In the preface Gordon writes, “The stories that stay with us, often the simplest in their narrative line, tell us about persecution and triumph, order and disorder, cowardice and bravery, and the strongest of passions, including particularly those between parents and children” (2001, ix.). Similarly, The Great Maine Bathroom Case chronicles the story of a girl in the twenty-first century. This dissertation positions itself thematically around the narrative of Nicole Maines who, though born a boy, embarked on a quest to claim her identity as a girl. Her odyssey as the plaintiff in the Doe v. Clenchy case ultimately culminated in a decision in her favor by the Maine Supreme Court in February, 2014. The story of her persecution, bravery, love of family and triumphant struggle for equality is riveting, and it provides a vehicle for critically engaging with many of the trenchant issues fueling the current confrontational crisis that lies at the intersection of gender, culture and public policy in America today. Today, in mid-2016, we find ourselves embroiled in a nationwide debate around access to sex-segregated spaces, ignited by a new law in the State of North Carolina that seeks to enforce the dichotomy of the sex/gender system. In response to the question over which restrooms transgender people should use, North Carolina’s legislature stipulated that one’s biological sex at birth was the determinant for access, and not one’s gender identity or expression. The 2 Federal Government filed a lawsuit against North Carolina in early May, 2016, and the state countersued within days; the issue contended is now on its way to the United States Supreme Court for resolution.